It is not for this court to determine whether the MDL court’s decision was right or wrong. The whole purpose of MDL would be defeated if the trial judge after remand were to revisit the rulings of the MDL judge.
But there is another reason to doubt the reliability of Dr. Hwang’s opinion. The MDL court held that . . . one of the . . . studies Dr. Hwang relied on, “is not admissible evidence of causation” and excluded all opinions “to the extent they were based on the Davidson study.” In re Zicam Cold Remedy Marketing, Sales Practices, and Prods. Liab. Litig., 2011 WL 798898, *17 (D. Ariz. 2011). This Court will not readjudicate the MDL court’s ruling.
[W]hile this court has not entered a Scheduling Order, that is because the MDL court previously did so. Ms. Conklin amended her pleadings more than four years after the MDL court’s deadline. Ms. Conklin does not get a “do over” simply because this case has been remanded from the MDL.
In sum, Plaintiff has not shown good cause as to why she waited to designate “a case-specific expert” until after the [MDL] deadline for designation of experts expired, after discovery closed, after the Defendant filed Daubert and summary judgment motions, after the consolidated pretrial proceedings were completed in MDL court, and after the case was remanded back to this Court for final resolution of the pending motions.
The Court is persuaded that MDL consolidation would be poorly served if parties were forced to engage in duplicative discovery on expert evidentiary matters that were already the subject of discovery during the MDL proceedings. Plaintiffs received all the process that was their due before the Judicial Panel issued its Remand Order closing common fact and generic issue expert discovery.
So maybe what is past is prologue for MDL remand cases. And that’s a good thing because on the substance we are going to win some and lose some. But on procedure – it’s usually a defense game. It’s our side of the v. that gets the most benefit from strict adherence to deadlines and we want those deadlines to travel with the case. So, if you are faced with expired deadlines (or other procedural orders) and a plaintiff who is looking for a mulligan, hopefully you can use a few of these cases to help make your argument. And, if you know of others – as always, send them our way.